Gilbert Aguirre v. State

• Court: Court of Appeals of Texas
• Decided: November 5, 2008
• Docket: 04-07-00889-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-07-00889-CR

Gilbert AGUIRRE, Appellant

v.

The STATE of Texas, Appellee

From the 218th Judicial District Court, Karnes County, Texas Trial Court No. 05-11-00128-CRK Honorable Donna S. Rayes, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: November 5, 2008

ABATED AND REMANDED

Gilbert Aguirre was convicted of aggravated assault. Among the issues Aguirre presents on

appeal is the absence of a factual basis in the record to support the amount of restitution he is ordered

to pay. The State concedes that no evidence to support the amount of restitution is contained in the

record but was “arrived at a later date from submissions by the victim in regards to his medical

costs.” 04-07-00889-CR

Due process considerations require that the record must contain evidence to show that the

amount of restitution set by a trial court has a factual basis. Cartwright v. State, 605 S.W.2d 287,

289 (Tex. Crim. App. 1980). The proper procedure where the amount of restitution is not supported

by the record is to abate the appeal, set aside the amount of restitution, and remand the cause for a

hearing to determine a just amount of restitution. Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim.

App. 2008); Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000). Accordingly, the amount

of restitution contained in the trial court’s judgment is set aside, this appeal is abated, and the cause

is remanded to the trial court for a hearing to determine a just amount of restitution.

DO NOT PUBLISH

-2-